Why would Israel and its allies fear the ICC?

Israel has long been accused of acting with impunity in the Palestinian territory it occupies, relying on support from the United States and the broader West to protect it from repercussions.

Yet a recent flurry of media reports out of Israel indicates that Israeli officials may be worried about the winds changing with the International Criminal Court (ICC) reportedly planning to charge top Israeli military and political figures with war crimes and crimes against humanity in Gaza.

Israeli media reports indicate that arrest warrants could be issued as soon as this week and that Israel has asked the US to pressure the court to not issue them. Al Jazeera has been unable to independently confirm the potential warrants.

The ICC has spoken to medical staff in Gaza about possible war crimes, according to the Reuters news agency on Tuesday, reviving discussion of possible warrants.

In March 2021, an ICC investigation of Israeli conduct in Gaza and the occupied West Bank and East Jerusalem since 2014 was launched under former ICC Prosecutor Fatou Bensouda.

In November last year, Bangladesh, Bolivia, Comoros, Djibouti and South Africa referred Israel’s conduct to the court again, resulting in current Prosecutor Karim Khan announcing that the ongoing investigation had been expanded to include violence since Israel’s latest war in Gaza began in October.

A month later, on a visit to the West Bank and Israel, he said the court would investigate crimes by both Israel and Hamas on and since October 7.

Why an investigation that has been under way for three years has caused such sudden concern within Israel has raised some questions.

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Israel and the ICC

Israel is not a signatory to the Rome Statute, the treaty that established the ICC, and, as such, does not recognise its authority, and neither does the US.

Normally, that would mean the court could not investigate Israel; however, its jurisdiction extends to crimes committed by a member state or on the territory of one of its member states, of which Palestine is one, having joined by request of the Palestinian Authority in 2015.

As such, the court has the power to investigate grave crimes and issue arrest warrants against anyone – including Israeli soldiers and officials – implicated in perpetrating atrocities in the West Bank or Gaza.

According to Israeli news outlets, Prime Minister Benjamin Netanyahu, Defence Minister Yoav Gallant and army chief Herzi Halevi could all be hit with arrest warrants in the coming days, which could significantly impact their political and military careers.

Netanyahu said last week on social media that Israel would “never accept any attempt by the ICC to undermine its inherent right of self-defense”.

Legal experts speaking to Al Jazeera believe that any indictments would be related to Israel’s policy of weaponising food to starve civilians in Gaza and Hamas’s decision to take Israelis captive during their surprise attacks on October 7.

JABALIA, GAZA - MARCH 27: Crowd of starving Palestinians, including children, wait to receive food distributed by charity organizations amid Israel's blockade as the situation dramatically deteriorates in Jabalia refugee camp, Gaza on March 27, 2024. ( Mahmoud Issa - Anadolu Agency )
Malnourished Palestinians wait to receive food aid in Jabalia refugee camp in Gaza on March 27, 2024 [Mahmoud Issa/Anadolu Agency]

“These two charges are the easiest to trace up to the senior leadership [of both parties],” said Adil Haque, a professor of law at Rutgers University in New Jersey.

Israel’s war on Gaza has killed nearly 35,000 Palestinians, left the enclave on the verge of famine and uprooted nearly all of the more than two million people who live there.

Israel has defended its conduct in the war under the pretext of self-defence after the Hamas-led October 7 attacks on southern Israel led to the deaths of 1,139 people and the capture of about 250.

Israel has since faced accusations of genocide at the International Court of Justice (ICJ), the highest United Nations court, which, like the ICC, is based in The Hague.

Experts believe ICC indictments could further undermine the legitimacy of Israel’s war on Gaza and complicate its exceptional relationship with European allies who are members of the Rome Statute.

“This would be a huge moment for the ICC itself, for Israel and just as importantly for Israel’s allies,” said Hugh Lovatt, a senior policy fellow and expert on Israel-Palestine with the European Council for Foreign Relations.

“It would clearly be seen as further stigmatising Israel … for its actions in Gaza.”

Political repercussions

Of the three people seen as potential subjects for ICC arrest warrants, Netanyahu would face the largest dilemma. He is already fighting for his political survival as he stands trial on corruption charges and for the security failures that allowed the October 7 attacks.

israeli Prime Minister Benjamin Netanyahu
Israeli Prime Minister Benjamin Netanyahu [File: Ronen Zvulun/Pool]

As head of state, he could be barred from visiting the European Union, where all member states are theoretically required to arrest him as part of their obligations under the Rome Statute.

“There are 120 members of the [ICC] who in principle would be obligated to arrest them if they stepped foot in those countries, and there is an argument that any country – even if they are not party to the court – could arrest them,” Haque said.

Israel claims to have the “most moral army in the world” and Palestinians are a “stateless mass of unorganised, violent people that attacks Israel unjustifiably”, said Alonso Gurmendi Dunkelberg, an expert in international law and a lecturer at King’s College London.

“Israel’s whole narrative … of the conflict is at risk,” Dunkelberg added. “When you start chipping at the edges of the debate, you will find [Israel] is at the ICJ being sued for genocide … and then you add the ICC. Eventually at some point, [Israel’s] narrative starts to really weaken.”

Double standards

ICC arrest warrants against Israeli officials could have stark implications for Israel’s European allies, who would be forced to balance their exceptional relationship with Israel with their ostensible support of the international rights-based order, according to Lovatt.

“European countries supported the ICC arrest warrant against [Russian President] Vladimir Putin [for atrocities in Ukraine], …so how can they come out and suddenly oppose or criticise an ICC indictment on Israeli officials?” he asked.

International Criminal Court Prosecutor Karim Khan and Ukraine's Prosecutor General Iryna Venediktova visit a site of a mass grave in the town of Bucha
Khan and Ukrainian Prosecutor General Iryna Venediktova visit a mass grave in the town of Bucha outside Kyiv on April 13, 2022 [Volodymyr Petrov/Reuters]

“If they shield Israel from international accountability yet again, then it will further underscore – in the eyes of many other countries in the Global South – that the West is engaged in this obvious game of double standards, and that will undermine … the international legal order.”

Dunkelberg added that there is a possibility that close Israeli allies who also have commitments to the ICC, such as France, Germany and the United Kingdom may refuse to arrest indicted Israeli leaders who visit their countries.

Such a move would be damaging to the global credibility of the court, but it would not be unprecedented. In 2009, the ICC indicted Omar al-Bashir, Sudan’s former president, for war crimes, but African states refused to comply with the ICC’s arrest warrant.

At the time, European leaders and rights groups criticised African states for their failure to uphold their commitments under the Rome Statute, Dunkelberg said, adding that most Global South leaders are keenly aware of the double standards.

However, Europe could deal the court a death blow if it refuses to comply with any ICC arrest orders against Israeli officials.

That could set a precedent under which signatories of the Rome Statute simply dismiss the ICC’s arrest orders or withdraw from the court.

“If all of a sudden when the chips are down, Israel just gets a pass, then that would be the last nail in the coffin. It would create a massive legitimacy crisis for the ICC,” Dunkelberg said.

“There is a political cost for Europe to continue to act in hypocritical ways.”

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